1. The above two appeals arise out of the judgment of the learned Sessions Judge, Bharatpur dated 2-5-1970 by which he convicted Dhanni under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life. The co-accused Tota. Nasira, Juma, Subhan and Patri were, however, acquitted of all the charges. Aggrieved by his conviction Dhanni has filed appeal to this Court which has been registered as D. B. Criminal Appeal No. 337/70. So also dissatisfied with the order of acauittal passed in favour of the other five accused, the State has filed appeal and the same has been registered as D- B. Criminal Appeal No. 768/71. At this stage, we may mention that during the pendencv of these appeals. Tota has died. Consequently, the appeal filed by the State affainst Tota has abated and we are therefore, only concerned with the five accused, namely Dhanni, Nasira, Juma, Subhan and Patri.
2. There is a field Khasra No. 476 called 'Bandhwala Khet' situated in village Chulhera. This field originally belonged to Shivram. The prosecution case is that in Samwat 2025 Shivram sold away this field to Bholisin? P. W. 3 and the deceased Gabdu used to cultivate it as a tenant of Bholising. It appears that there was a dispute between Bholisins on the one hand and the accused Tota on the other regarding the ownership and possession over this field. On 7th December 1968 at about 9 in the morning, it is alleged by the prosecution that P. W- 2 Govind Singh and P. W, 5 Nathisingh, who are closelv related to P. W. 3 Bholising inasmuch as Govind Singh is son of Bholisineh and Nathising is uncle of Bholisinsh. went to the field in auestion with a bullock-cart for loading and bringing their share of fodder from Gabdu who actually cultivated the field. Gabdu used to reside in a neighbouring village Digcholi and Govindsingh went to bring him at the field. Gabdu also arrived at the field with a bullock-cart and Govindsingh and Nathi-singh on the one hand and Gabdu on the other divided the heap of fodder lvine in the field and started loading the same in their respective carts. At this stape, all the six accused came to the field. It is stated that Nasira. Subhan and Dhanni had 'pharsis' whereas Tota. Patri and Juma had lathis. It may also be mentioned here that Nasira, Juma. Subhan and Dhanni are the sons of Tota, whereas Patri was sympathiser of Tota-
The Prosecution storv proceeds that Subhan caught hold of Gabdu by hand and stopped him loading the cart with fodder whereupon Govindsingh protested and sot the hand of Gabdu released from Subhan. On this, it is alleged Dhanni Have two blows with the 'Dharsi' he had in his hand on the head and lee of Gabdu and the rest of the accused also beat him after he had fallen to the ground. Hearing the noise, P- W. 4 Prahlad who was in his field nearby, came to the rescue of the complainant's party but Dhanni inflicted two blows with the 'pharsi' on Prahlad's head also. Seeing this. Govind Singh tried to run awav, but Tota dealt a blow with a lathi on the left knee of Govind Singh and Tota, Dhanni, Subhan and Nasira also chased Govind Singh. It is then said that Juma and Patri eave blows with lathis to Nathi. At this time P. W. 1 Balmukand was coming on a mare from the direction of the village and Govind Singh asked him to go back as a Quarrel had taken place and savins so. Govind Sineh ran towards the village, but Tota, Dhanni, Subhan and Nasira surrounded Balmukand and beat him with lathis and 'pharsis'. Thereafter Govind Singh lodged a written first information report of the occurrence at Police Station Deeg situated at a distance of seven miles from village Chulhera at 4-30 p. m. That report has been placed on record and marked Ex. P-l. All the six accused were tried in due course, by the learned Sessions Judge.
3. The defence of the accused in short, is that Shivram had sold the field in question 8 to 10 years before the occurrence to Tota who was in actual Possession pi the field in question on the date of the incident and that the complainant's party had wrongfully come on the field to steal away the fodder lying there- All the accused have, however, denied having beaten any of the complainants. The accused also examined three witnesses in defence.
4. Before we, come to the contentions raised by learned Counsel for the accused and the learned Counsel for the State, we may point out that the fact that Gabdu died on account of the following injuries found on his person at the time of post-mortem examination has not been challenged before us, So also the fact that P. W. 1 Balmukand, P. W. 2. Govind Singh, P. W. 4 Prahlad and P. W- 5 Nathi-singh were injured and the following injuries were found on their bodies at the time of their medical examination on 7-12-1968 has not been called into Question and. in our opinion, rightly so. We mav. therefore here reproduce the injuries found on the deceased as well as the injured: Deceased Gabduexternal injuries
1. One extensive gaping incised wound 6' x 1' x 1' encircling the medial side of the left leg at its middle which had cut and fractured the left tibia and fibula into two and also severed the structure of the left lee.
2- One gaping incised wound 8' x 1/2' x brain deep over the left temporal parietal and left side of occipital bone, which had cut and fractured all the above bones.
1. Left temporal bone was found cut and fractured.
2. Left parietal bone was found cut and fractured at its middle.severing the middle meningeal artery on the left side forming a blood clot, which was seven inches in diameter. The clot was found lyine over and adherent to the dura mater. Dura mater was also torn of the bone- Brain was found lacerated on the under surface of the temporal lobes. The internal injuries were the result of injury No. 2-It has been further stated that injuries Nos. 1 and 2 were individually and collectively sufficient in the ordinary course of nature to cause death.
P W. 1 Balmukand (Injury Report Ex. P-25)
1. Lacerated wound oblique li' x i' x bone deep on the anterior aspect of right middle finger on first and second phalanx.
2. Lacerated wound oblique on the right side of the parietal bone 4i' above the hairv margin of the back of neck-
3. Contusion mark oblique 1/2' x 1/2' on the outer aspect of right leg near the ankle joint.
4. Contusion mark oblique 7' x 2' on the right side of the back 2i' below the scapula-
5. Contusion mark oblique 5' x 3/4' on the left side of the back from scapular region downwards.
6. Contusion mark oblique U' x 1' on the right scapular region in the middle.
7. Contusion mark oblique 3/4' x 1/2' just below injury No. 6.
8. Contusion mark 2' x 1/2' obliaue on the posterior aspect of right forearm 2i' below the elbow joint.
9. Lacerated wound obliaue 3/4' x 1/2' x skin, deep on the outer aspect of left forearm iust below the elbow.
On X-ray examination the middle phalangeal joint of rieht middle fineer was found to be dislocated.
P- W. 2 Govind Singh (Injury Report Ex. P. 27).
Contusion mark oblique 1' x 1' on the outer aspect of left lee in the middle. P. W. 4 Prahlad (Injury Report Ex. P-24)
1. Incised wound semi-circular in nature. The right ear is chopped off. Only the lobe portion is intact with a muscle tage wound bleeding 3 1/2' x 1' x bone deep. Grievous,
2. Lacerated wound 2 1/4' x 1/4' x 1/4' on right parietal occipital region 4' above the right ear.
3. Contused wound oblique with peeling of skin 1' x 1/4' on the posterior aspect of right forearm externally 1' below the wrist.
4. Contusion mark oblique 1/2' x 1/2' on the anterior aspect of right foot in the middle.
5. Contusion mark 3' x 1/4' on the posterior aspect on left forearm 1 V' below the elbow.
P. W- Nathisingh (Injury Report Ex. P. 26)
1. Lacerated wound oblique swelling 1/2' x 1/4' on the posterior aspect of left forearm 2' below the wrist.
2, Contusion mark oblique 2 1/4' x 1 1/4', on the posterior aspect of right arm 5' below the elbow.
5. On X-ray examination, the lower end of the left radius was found fractured.
6. The first point raised by learned Counsel for the convict Dhanni is that the prosecution has failed to establish the possession of the compainants on the filed in dispute. It has been argued that the dispute between Shivram and Tota had been compromised., and the right of Tota to the field in auestion had been recognised by a competent court. At this stage we may also mention that in the course of areu-ments. learned Counsel wanted to put on record, though no formal application was made, for the purpose pertain documents purporting to be evidence of compromise and the resultant order passed thereon between Shivram represented by his Mukh-taram Balmukand and Tota. It may be pointed out that the accused were prosecuted for the occurrence in question in the month of February, 1969 and trip case was decided by the trial Court on 2-5-70. Well nigh more than two years have passed since the matter has been pending in appeal, but at no stage so far any application was made on behalf of the accused for admission of additional evidence. It is noteworthy that the case remained part heard on 12th January, 1973 but even on that day. no such request was made- We do not see any sufficient ground for taking on record any documents at this stage. We are further of opinion that by mere production of these documents, we cannot derive any assistance for arriving at a correct decision on the main point in dispute between the parties. The learned Counsel is right in his criticism that the prosecution has not placed on record the sale-deed executed in favour of Bholisingh, nor other convincing documentary evidence that Bholising had sot possession of the land in auestion from Shivram. But there is oral evidence of P. W. 3 Bholisineh that he had purchased the Khasra in question and one more Khasra in Samwat 2025 from Shivram and since the date of purchase he had been conti-nuouslv in possession of the same. He has also stated that he had taken Gabdu as a partner in cultivation and that Tota accused was never in Possession of the said fields. No cross-examination worth the name has been directed to this witness. P. W. 1 Balmukand has stated that Shivram and Tota were litigating over the field in dispute and that he was conducting that case on behalf of Shivram as his Mukhtaram. But at the same time, he has deposed that Shivram executed a sale-deed of the land in auestion in favour of Bholisingh and we are constrained to point out that no cross-examination has been directed to this witness also on the point of possession. P. W- 18 Ramswaroon Patwari of the village has also appeared in evidence on behalf of the prosecution. He has stated that Shivram has been entered as the tenant in possession of the land in auestion from Samwat 2022 to 2024 and in Samwat 2025 Bholisingh came into possession of the land on the basis of the sale-deed executed in his favour. He has also produced a Khasra Girdawari of the field in auestion for Samwat 2025 in which mutation of the field in auestion has been made in favour of Bholisingh. The witness has no doubt stated in cross-examination that he himself never saw either of the parties actually cultivating this land. This is the main evidence regarding possession produced on behalf of the prosecution. None of the accused has asserted his possession on the field in question on the date of occurrence, nor have they stated that crop had been cultivated by them and the fodder belonged to them. All that the accused have stated in their statements under Section 342, Criminal P. C. is that Shivram had sold the field in question to them 8 to 10 years ago and that Balmukand wanted to usurp the field from them. The defence witnesses produced by the accused have no doubt stated that Tota was in cultivatorv possession of the land in question for 10 to 12 years and we cannot fail to point out that the counsel in charge of the prosecution failed to discharge his dutv inasmuch as he allowed the defence witnesses to so uncross-examined. In the state of evidence on record, therefore it is difficult to give a definite and positive finding that the complainants or for that matter the accused had actual possession of the field and any one of them was trespasser. But that by itself will in our opinion be no ground for exonerating the accused as, in our opinion there was no justification for the accused to have acted in the manner in which they did, in case it is found that the accused or anyone of them were the real assailants.
7. So far as Dhanni is concerned, there is consistent evidence against him and this fact finds clear mention in the first information report also, that he came to the spot armed with a 'Pharsi' and after Subhan had caught the hand of Gabdu and Govind Singh had got the hand of Gabdu released, Dhanni save two blows with the 'Pharsi' on the head and leg of the deceased Gabdu which resulted in his instantaneous death at the spot. To this effect are the statements of P. W. 2 Govind Singh. P. W. 3 Bholi Singh, P. W. 4 Prahlad and P. W. 5 Nathi. The evidence given by these witnesses and the injuries described by them are fully corroborated by that medical evidence and we do not see any reason for taking a different view from the one taken by the learned Sessions Judge that Dhanni was responsible for the injuries found on the person of Gabdu.
8. learned Counsel for Dhanni argued that Dhanni at the worst exceeded the right of private defence of property and in this connection, he relied upon Section 104 IPC and submitted that the offence which was being committed by Gabdu was one of theft and criminal trespass and that gave right to Dhanni to voluntarily causing of any harm other than death. In the first place, it may be pointed out that the defence has not succeeded in showing that Gabdu had committed any theft or criminal trespass and, in any case, Dhanni along with other associates had come armed with a 'pharsi' and that in the facts and circumstances of the case it cannot be said that Dhanni. in exercising the right of private defence of property exceeded the power given to him by law and caused the death of Gabdu without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence. Gabdu was only a tenant of Bholisingh and it was at the instance of Bholisingh that he had come to the field and had started loading the fodder in the bullock-cart. It is also clear that Govind Sineh son of Bholisinsh came to the rescue of Gabdu as soon as the accused Subhan caught hold of his hands and raised a protest- There is nothing on record to show that thereafter Gabdu did anything so as to take away the fodder by force or to give an apprehension in the mind of Dhanni that he would cause any harm to him or to his property. In any view of the matter, it is clear from the nature of the injuries found on the person of Dhanni that the assailants of Gabdu had no intention of causing more harm than was neces-sarv. In this connection, reference may, be made to Exception 2 to Section 300 I. P. C- which runs as under:
Exception 2. Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.
Assuming for the sake of argument that Dhanni had some sort of right of defence of property, Exception 2 cannot be attracted in the present case.
In Gurdatta Mai v. State of Uttar Pradesh AIR 1965 SC 2o7 : 1965-1 Cri LJ 242 it was found by their Lordships that the deceased had no arms, whereas the appellants were fully armed with deadly weapons and that the deceased were cutting the crop under the protection of the Police with their peaceful intention. The accused shot the deceased at close range without warning. Their Lordships were pleased to hold that the accused who claimed the crop in the first instance did not approach the authorities for redress although they had time to do so. but attacked the deceased with guns and other dangerous weapons and in the circumstances of the case, the accused could not rely upon their right, of private defence.
9. In Jalal v. King Emperor AIR 1923 Lah 232 : 25 Cri LJ 811 it was observed that to claim the benefit of Exception 2 to Section 300 the accused must show that thev had no intention of doing more harm than is necessary.
10. Now, in the present case, a question arises was it necessary for the accused Dhanni in the circumstances in which the accused and the complainants were placed to inflict severe blows at the vital part of the body of Gabdu immediately on coming to the field? The answer is clearly in 'No'. The accused Dhanni clearly acted in a cruel and unusual manner and his intention was to cause more harm than was necessary has to be inferred in the facts and circumstances of the case. There is no denying the fact that the case of the accused clearly falls under clause 2ndlv to Section 300 I. P- C. as the act was done clearly with the intention of causing such bodily injury as the offender knew to be likely to cause the death of Gabdu. It is even conceded by learned Counsel for the convict that the offence can be taken out of the purview of Section 302 I. P. C. only if it is held that the case falls under Exception 2 to Section 300 and that Dhanni had exceeded the right of private defence. Since we have come to the conclusion that the case of Dhanni does not fall under Exception 2 to Section 300 IPC he has rightly been held guilty under Section 302 I. P. C The conviction and sentence awarded to him by the Sessions Judge calls for no interference.
11. Now, coming to the appeal filed by the State, there is force in the contention of learned Counsel for the State that the lower court has exonerated all the other accused on the ground that there is discrepancy in the statement of Prahlad (Ex-D-1) which was recorded as a dying declaration. It is submitted that the evidence of witnesses other than Prahlad cannot be contradicted by the statement of Prahlad (Ex. D-l). We therefore cannot reject the case against the other accused on the around relied upon by the learned Sessions Judge. No other argument has been given by the Sessions Judge for rejecting the prosecution case asainst all the rest of the accused.
We may therefore deal with the case against the rest of the four accused Nasira. Subhan, Juma and Patri. P. W. 1 Balmu-kand states that Nasira and Subhan had inflicted injuries to him by 'Pharsis', but the medical evidence shows that there were no injuries by sharp weapon found on his Person. learned Counsel for the State submits that these injuries may have been inflicted by the wrong side of the 'pharsi'. We are not prepared to accept this explanation and are. therefore, not in a position to convict any of the accused for the injuries caused to Balmukand. The injuries to Govind Singh have been ascribed to Tota who has died during the pendency of these appeals and. therefore, nobody can be punished for the injuries caused to Govind Singh. P- W. 5 Nathi has ascribed the injuries to Juma and Patri by lathi. Patri is said to have given the blow on the shoulder but the medical evidence reveals no injury on the shoulder. Conseauentlv. Patri also cannot be punished. Juma is alleged to have given a blow with a lathi to Nathi on his left hand and the evidence given by Nathi against Juma is corroborated by medical evidence inasmuch as an injury was found on the left hand of Nathi and the radius was found fractured on X-ray examination. Juma is therefore liable for causing a grievous hurt to Nathi by a blunt weapon and he is therefore liable to be convicted under Section 325 I. P- C. Prahlad P. W. 4 states that Dhanni caused him injury by a 'pharsi' on the ear, P. W. 22 Dr. D. P. Mishra has stated that a serious injury was found caused by a sharp weapon on the right ear of Prahlad which was hanging down with a muscle tag. Dhanni is therefore also liable to be convicted under Section 326 IPC for causing grievous hurt to Prahlad by a sharp weapon. Thus, in the appeal filed by the State, the acauittals of Juma and Dhanni under Sections 325 and 326 I. P- C deserve to be set aside.
12. The net result of the foregoing discussion is that we dismiss the appeal No. 337/70 by Dhanni and uphold his conviction under Section 302 I. P. C- and sentence of life imprisonment passed thereunder.
13. We partially allow the appeal filed by the State No. 768/71 and set aside the acquittal of Juma under Section 325 IPC and that of Dhanni under Section 326 IPC We convict Juma under Section 323 I. P. C and sentence him to three years' rigorous imprisonment. We also convict Dhanni under Section 326 I. P. C and sentence him to five years' rigorous imprisonment. The _ substantive sentences awarded to Dhanni will run concurrently.
14. Juma is not present in the Court today. The District Magistrate. Bharatpur is directed to get him arrested and to send him to Jail to undergo the sentences awarded to him.
15. Mr. R. S. Purohit pravs for Grant of leave to appeal to the Cupreme Court on behalf of Dhanni and Juma. However, we do not consider it a fit case for grant of leave. The Praver is disallowed.